September 23, 2005

Said Orrin Hatch, referring to the upcoming confirmation battle over whomever George Bush picks to replace Sandra Day O'Connor. But aren't the Democrats hoping they've signalled to Bush that he must pick someone more moderate than John Roberts for this next slot? Hatch seems to already know that he won't: "I don't think the president is going to be bullied into putting somebody up that he doesn't believe in."

Ann: I must be missing something about Roberts. I did not notice any answer from him that differed from what I would have expected Rehnquist to say. Now, I realize that a Rehnquist is not quite the same as Scalia or Thomas, but I don't know that I expect either (1) the President to pay that much attention to the distinction or (2) the distinction to make a practical difference in many actual cases.

Oh but Ann, I think Roberts is more of a strict constructionist than we think. He may not be Scalia or Thomas, but I think he will likely be very similar to Rhenquist. His record of serving Ronald Reagan does foretell that he's a true believer.

I think his non commital stance in the hearings was due to the fact that if he announced some of his true beliefs, legal or otherwise, that it would have caused great controversy and he would have been "Borked" out of the room.

Stealth: I think Roberts showed himself to be a pragmatic reasoner, open to the notion of a living Constitution, and never said anything that made him seem like he adhered to "strict constructionism" or the sort of textualism/originalism that Scalia and Thomas rely on. I think Rehnquist in his final phase was not like Scalia and Thomas either. Bush said he'd nominate someone like them. So far, he hasn't.

I doubt seriously the President is going to make his choice based on braying from the democrats. He owes them nothing. I expect him to nominate the person he favors most. It's Spector's job to get him/her through the committee of whiners. Kennedy, Biden and Schumer are certain to mount a deplorable, despicable campaign no matter who is nominated, unless Bush decides that another Ruth Bader Ginsberg is what he really wants. I hope it's Janice Rogers Brown, I want to see the dems bring back long dong and pubic hairs.

aren't the Democrats hoping they've signalled to Bush that he must pick someone more moderate than John Roberts for this next slot?

As mentioned previously, I'm sure that this was their intention - but because they have not been able to determine whether that message is sent by voting yes or no, I would say that their hopes are in vain.

Sadly, I think Eddie's flat out wrong - or at lesat, exceedingly optimistic. Roberts is a conservative, sure. And he even has penchant for the wry turn of phrase in his writing. But that doesn't make him a Scalia or a Thomas, and if he's a Rehnquist, he's the Chief, not the Lone Ranger. But for my money, we have an O'Connor/Kennedy.

I will be delighted to be proved wrong on this. I hope he really was being too clever by half in misleading the committee, even if that means creating the unbearable public perception that Joe Biden may have been right. Scalia wrote his Morrison v. Olson dissent - his first genuinely brilliant - sit-up-and-pay-attention opinion, IMHO - in his second term on the court, so we'll see how long it takes Roberts to fly his colors.

I'd say that the Democrats already got someone moderate in Roberts, and that those who believed Bush's campaign promise have far more of a claim -- that the next nominee should be more distinctly conservative!

I think Roberts showed himself to be a pragmatic reasoner, open to the notion of a living Constitution, and never said anything that made him seem like he adhered to "strict constructionism" or the sort of textualism/originalism that Scalia and Thomas rely on.

But, didn't JRB give a speech a couple of years ago endorsing Lochner? Or is that an urban myth? A chap over at Centerfield recently asked me if I "really want[ed] the sort of guy that [I]'ve identified as simply a different flavor of dead wrong?", which I thought was a very good way of putting it, and to which the answer is "hell no". The goal is not a conservative - the goal is an originalist, and at this point, if we can't have a Scalia, I'd settle for a Hugo Black.

An ideologue, no, but I do think he will rule very similarily with Scalia and Thomas. It's just my gut. Scalia and Thomas could have also said they weren't ideologues either. What does that really mean either? I am sure Ginsberg could have said the same about herself.

Ann Althouse said... Eddie: So you think Roberts is really a political ideologue, who misrepresented himself to the Committee?

I think that there are many "on the right" who hope he mislead and many "on the left" that fear he mislead. (I think this is in part what was behind Specter's push to let O'Connor stay on for another year.) Time will tell. If it turns out he mislead, it will be interesting to see what happens not in the O'Connor replacement nomination, but moreso in subsequent nominations.

Remember that Roberts started out as O'Connor's replacement and later became Rehnquist's. Republicans warned of the potential downside of moving up Roberts to Chief: that Democrats can now claim Roberts is the conservative who replaces Rehnquist, so therefore we need a moderate to replace O'Connor.

In favor of a conservative: If he doesn't, there will be even more open discontent in the conservative ranks, and he may weaken the party long-term. The GOP can no longer claim to be the party of small government and fiscal conservativism, and Bush has disappointed social conservatives by not being more practically supportive of their goals (despite talking the language). He risks having a good portion of the base ask "Why bother?" and stay home.

In favor of a moderate: Second-term Presidents think a lot about their legacy and how historians will write about them.

I think what eddie meant to say at the top is, Bush means what Cheney says, and does what Cheney tells him to do.

As for the next nominee, look to the money. I predict a judge who appears to be socially moderate, but who leans heavily in favor of business interests. The Court can tilt in more directions than just left and right.

Roberts is as good a nominee as could be expected by any reasonable person and yet Hillary, Reid, etc will vote against him. So what the hell, just nominate who you want, let them fillibuster (you know they want to now). It will only enhance the image, to paraphrase Groucho Marx, whatever George Bush is for, I'm against it.

Jim... It depends on where being against Bush comes from. The left default hatred is quite irrational and borders on the insane. Embarrassing for sure. The right has more reasonable dislike (spending, immigration -- issues -- not Georgie boy hates Blacks or unleashed the Kraken on La. like a modern day Poseidon).

I think Roberts will be a textualist -- not quite like Scalia, but not wishy-washy vain like O'Connor either. Activism is not necessarily a bad thing if it's keeping Congress and the Executive to their Constitutional responsibilities.

However, that being said, I think that the idea that Bush is somehow obligated to produce a nominee who is politically moderate is deeply offensive to the spirit of the Constitution. Why can the Senators be political about the nomination, but Bush can't? It's totally bogus, and it gives the Senate an oppressive level of authority over the other two co-equal brances of government.

Nominations worked a lot better when a few pertinent questions were asked and answered following the ABA recommendation, and then they voted. This long process is turning the judiciary into a travesty of epic proportions.

The American people are not entitled to a judiciary that fits certain policy stances. They are entitled to a judiciary filled with smart, talented people with a passion for the law and an understanding of the judicial role.

Has there been a tradition of replacing Supreme Court justices with persons having a similar judicial ideology? Because it seems like the Democrats are creating a new standard where Pres. Bush has the responsibility to keep the ideological equilibrium of the Court stable, and must maintain a Supreme Court temperament in which the party OUT of power finds favorable.

I don’t remember this kind of standard being applied to Pres. Clinton - Ginsberg was deemed to be qualified due to her legal qualifications, not because of “what’s in (her) heart” or how her judicial philosophy mirrored the justice she was replacing.

It's interesting that no one here in the comments factors in Bush's image problem into their calculus. This president is in bad shape in the polls, especially with his own party.

This next nomination is one of the only levers Bush can pull right now and try to make a rabbit come out of his hat. Doesn't he HAVE to go hard Right to try to get his team back around him and his enemies in a corner?

How would it benefit him at all to nominate a 'moderate' or even a Roberts II? There is no political gain to be made moving in that direction.

Troy:Activism is not necessarily a bad thing if it's keeping Congress and the Executive to their Constitutional responsibilities.

But that's not activism! Merely undertaking an action is not being activist! Doing what the court is supposed to do cannot, practically by definition, be activism. I wrote about this at more length previously; see Dodd, Less nebulous than you'd think, §I(a), pp.2-4.

I think that what the Democrats who oppose Roberts have signaled is that they cannot be satisfied by any candidate acceptable to Bush. Their votes are owned by left leaning interest groups and constituents. They're not interested in performing their duties faithfully; they're fundraising.

Stranger:Clinton is the guy worried about his image. I think Bush probably cares but not enough to go against his principles. That's the last thing that contrived low poll numbers would get him to do. He isn't running again, and he can have an approval rating of zero when he leaves office in three years. Who cares?